Monday, July 13, 2009

STAND UP FOR YOUR RIGHTS!

I have been trying to put together on a book on advocacy practice for some time, particularly around what constitutes ethics. Initially it focused primarily on the ethical parts of advocacy geared to the legal profession, but then again - we already have plenty of guidance in that through our regulator and various professional associations. However, my work is much more than that ... I talk more about meaning, what it means to speak up for yourself, speak up for others, or to represent a constituent group.

Limiting ethics to practice work is difficult, as in practice, doing advocacy as a profession still stifles us to a specific framework of how we advocate, how we present ourselves and how we maintain our clients' respective position. But nevertheless, my focus here is on self-advocacy, individual-focused advocacy and representative advocacy. There are basic ethics and guidelines in how to do these things correctly, but more or less, why you want to do it - that is the important thing.

I always say people who are white male millionnaires never need advocates. Such persons are capable of generating the resources they need when they feel threatened or backed into a corner. These are the people that threaten newspapers with libel action when unfavourable press is generated about them, or somebody at one of their social clubs attempts to exclude them in some way. The people I work with are those that need assistance with self-advocacy or need somebody to back them up big time.

I always pride myself in that I have a voice and I am eager to use it whenever I have a chance, and I will use it whenever I feel under attack. Part of self-advocacy for me is identifying my boundaries. Personal boundaries are a big thing. You have a right as an individual to decide what comes into your home, into your life or what level of abuse you are willing to exchange for valued goods and services. To me, I feel I should not have to follow any rules that are different than the rules that are followed by others. Under the Charter of Rights and Freedoms of this country, I am supposed to be considered equal before and under the law and under this province's Human Rights Code, I am supposed to live a life that is free from harassment and discrimination regardless of mental or physical disability, creed, ethnicity, racial origin, gender and a myriad of other reasons.

It is unfortunate that most people don't think this way, particularly when they are disadvantaged in some way, either by disability, ethnicity, poverty or some other issue. In 2006, I filed a couple of legal actions. These things took a lot out of me, as I don't like to get involved in protracted legal issues unless I feel I can bring something important to a final or interim resolution by doing so, when other strategies have failed. It is 2009, and these two actions will soon be winding their way back in the system. I am trying to find some time to obtain some important documentation because both of these cases are of public interest. Many people around me are aware of these two legal actions and for most, they cheer me on in the background; however, when I ask them to join me in the action, they are hesitant. For me, it is the number of people who are hesitant, not only in taking legal action, but raising hell in other ways, that leads to continued and entrenched discriminatory practices in society.

In my last posting, I made reference to Tim Hudak who campaigned and successfully won the leadership of the provincial Progressive Conservatives in part because he announced early on that he plans to dismantle the Human Rights Tribunal of Ontario. To me, that is a bad move. I am not a big fan of the way things are set up with the new Tribunal, as one year of full year practice has already proven for me what I thought would happen. In order to deal with a Complaint of legitimacy, one still waits. Once the Tribunal gets to it, it rushes the process to a point where it is difficult to properly assess, evaluate and play by the rules. Some Complaints that are irrelevant have been pushed through and while the Tribunal has handily dismissed them, the time the process has taken has been lost from legitimate issues.

Hudak's solution is just to put the matter to the courts. He suggested a good model would be the Family Law Courts or Domestic Violence Courts "where cases are heard on evidence as opposed to hurt feelings". That phrase made me laugh, as it is obvious that Hudak has never been the subject of a proceeding before either of these courts. The Family Law Courts handle both matters of separation, divorce, custody and support, as well as Children's Aid matters. If any of these subjects hit home with you personally, you know these courts are certainly procedurally minded, but many do feel they do not work on hard evidence. Families facing the Children's Aid feel they are kneeling below the Sword of Damascus no matter what they say or do. Parents and couples separating have found the family courts to depend largely on what Judge hears your case or how competent your lawyer is, if you can afford one. Nevertheless, many families have gone through these endeavours only to come out on the other end broke, penniliess, exhausted and alone. Many men as well also know what it is like to be accused of domestic violence as well ... what that does to their family, children, relationships and to some extent, in certain cases, their employment.

To the contrary, I do find the Human Rights Tribunals to base their decisions on evidence. In recent cases I have dealt with before the new Tribunal, I find the adjudicators to be very impartial and push parties to stick to the facts. They have mediations, discovery processes, interim decisions, motions, case conferences and other means of resolving disputes. As a young Tribunal, it is struggling still and at its birth, it was unfairly hit with thousands and thousands of cases, many of which were transferred over from but not resolved by the Ontario Human Rights Commission. If one reads the decisions of the Tribunal, which are printed through its website, one sees that the decisions are based on both fact and law. Many people do come to the Tribunal with complaints that may not necessarily fit the mould of the Code and the adjudicators are careful to ensure that the parties have an opportunity to review the law and take the opportunity to see if their case truly falls within its jurisdiction.

It is not the fault of the Tribunal that the occasional person puts forth a ridiculous lawsuit such as the one that is now before it about an alleged trans-gendered person that is accusing a ladies gym owner of barring him/her from the premises. There are reasonable defences to this respondent and I do hope he wins. However, cases like this do not necessitate the elimination of the Tribunal. People like this always seem to find a way to grind their axes in the court system too. I've encountered them in my own professional practice. An individual representing themselves puts forth a ridiculous lawsuit against my client that is either statute barred or based on non-justiciable issues, or on no evidence whatsoever, and despite motions to shut it down, the court tends to allow them to continue for a time until case conference or after some point in discovery or even in the lower courts, at time of trial. Yes, justice prevails here too, but only after months or even years of a stupid case winding through the courts.

However, the main reason I object is the issue of access. Courts are more difficult to deal with, are inherently more complex and if one is to pursue them, they usually need representation. In many courts, particularly the kind that Hudak alludes to, one can ONLY be represented by a lawyer and not by agent or paralegal. So, if a Complainant to this fictitious Human Rights Court wants to file a Complaint, they need to have money and LOTS of it ... as I said before, the white male millionnaires will probably not be filing complaints in this Court. But, the ones that really need to be in this Court will be shut out for financial and personal reasons. The Tribunal, on the other hand, while not perfect and still littered with too many rules in itself, is more accessible. More Complainants can self-represent in a meaningful way and others too, with some summary assistance by its Legal Support Centre. In some cases, the LSC will be able to represent a party all the way through a case. As well, paralegals and other approved agents can also represent a party before this Tribunal.

My concern is that if Hudak ever gets elected as Premier of Ontario and follows through with this above promise, rights abuses against vulnerable citizens will become more tolerated and accepted because there will be fewer people able to stand up against the abusers. With less Complaints, people like Hudak will make it look like Ontario is wonderful and tolerant and that the government is 'looking after' its people, while the pain and malcontent is simply shoved further beneath the surface.

Some people see how I instruct folks on self-advocacy. They complain that I can do this because I have legal training. The truth is I was doing it long before I got any of my legal training. What I understood and what I try to get people to understand is that you need to become aware of and respect YOUR personal boundaries. You know what is right for YOU and many times, when something does not FEEL right, it is not right. I sincerely believe that if even ten (10) percent of the population of low-income citizens or the population of persons with disabilities were to become effective self-advocates, many of the abuses that take place today will soon become intolerable in our society.

But unfortunately, many people do not become self-advocates or choose not to do so for a number of reasons: (1) They feel there is always somebody like me that is going to do it for them. I can't be everywhere, so other people need to chime in. (2) They feel they cannot be effective or they cannot win. Of course, you will not win by not fighting back. You can never choose your outcome by learning effective advocacy, but by not doing so - you are - you are choosing to lose. (3) In some areas of self-advocacy, they fear reprisal. People living in public housing fear they will get evicted. People receiving ODSP think they will get suspended or cut off for some real or imaginary "rule". People who assert their rights to law enforcement persons, such as the police force or even children's aid think they will be penalized in some way. The key is assertive, not aggressive or silly. (4) They fear unwanted publicity. To me, I always found the media to be an effective tool when "quieter" forms of advocacy didn't work; and (5) People feel they don't know their rights. There are always ways to find out what your rights are if you are not sure.

Some of the keys that worked for me is:

NEVER BE AFRAID

If your opponents note that you are not afraid of them, they are more likely to become afraid of you, especially if you start to assert yourself. To me, I approach all people I meet in various situations as simply other people who are doing a job. Many times, the person who is doing the job is not sure themselves if they are doing their job correctly. They will never share with you, but if you know they are acting in a way they are not supposed to, that will set them off ...

BE IN A POSITION TO INFORM, NOT ATTACK

Inform your adversaries of the facts. Back it up with evidence, as required. Do not agree to any position that makes you feel uncomfortable. Sometimes, I have had clients encounter agents that try to get them to sign a statement that includes an admission of guilt for something the person does not feel they did. There is nothing wrong with refusing to sign it. A couple of times, I noted an ODSP agent writing or alleging statements that my client is not declaring an income or an asset, or is living with somebody or has lived with somebody. If these allegations are not true, say so.

Many times, I informally meet with government agents, for example, who may be unaware a certain regulation was dealt with in a particular way by a court, for example. I come in with a copy of the court decision and provide them with it, as part of my "information" and "support" role. Do this in the spirit of cooperation and support, not an attack. People will react better to you when they better understand your position. I have had many crazy decisions overturned before they even reached the appeals stage that way.

BE PREPARED TO TAKE IT FURTHER

If the first stage does not resolve the issue, take it up a level. Get to know how your opponent is organized. Do they have a formal complaint process? Do they have a chain of command? Does the system you are fighting have a formal appeal process? I have had to advocate for myself and others in various systems, such as student loans, the school board, the welfare office, the co-op board, funding agencies, etc. many times without knowing what the process was at first, but I learned it.

Take the time to get to know your opponent. Who do they answer to? How do decisions by your opponent get made? Are they governed by any particular legislation? Is there a visible chain of command? Start at the point of the person you are disagreeing with, then go up the ladder. Do this in an informed way, while respecting their processes, yet at the same time being very clear as to what the nature of your concerns are.

LEARN ABOUT YOUR RIGHTS

Your opponent is not going to tell you what rights you have over them. However, no opponent, particularly any "official" opponent has absolute power and control. These people have less power over you than they try to let you believe. There are great resources to conduct research on your own to find out what your rights are. Google is a wonderful tool, which saved my hide several times. If your opponent is a government agency, you can obtain an organizational chart online to learn who is above the person who made the decision you are concerned about. There will also be information about how to file a formal complaint or appeal a decision on the organization's website or on the websites of persons or agencies that often support people like you who are fighting certain issues.

DO NOT BE AFRAID TO SPEAK TO THE MEDIA, BUT USE JUDGEMENT

In many cases, going to the media can be a good thing. It is often the straw that breaks the camel's back in certain bureaucratic abyss' that might not move otherwise. Get to know your local media, who is in charge of it and how you can reach somebody who might be interested in your story. Many reporters have "beats" that can be used to channel your information. For example, a health reporter might write a story about a mess-up that happened in your local hospital. A police reporter might be interested in how you were wrongfully arrested, placed in jail and then cleared, but how this impacted your life. An education reporter might be interested in the fight you are having getting supports for your child in your school.

If you want to try the media, be careful first. It is wise to speak with somebody who has dealt with the media before you try to do it. Keep your point simple. Emphasize three points in your release to them, and try not to make your story too complicated. Readers and viewers like the 30-second clip or the newspaper article that grabs their attention with key facts. Pay attention to your timing. If there is a bill before the legislature about your issue, you may want to bring this to the reporter's attention. If your issue just happens to be taking place during Mental Health Week (e.g. having trouble finding mental health help for your child), Poverty Awareness Week (e.g. how you just got cut off ODSP for a "phantom" job they claim you have), etc. it is timely. Make sure you approach your reporter when nothing of immediate concern is going on, such as a multi-car pile up on the QEW, the resignation of the Prime Minister, somebody getting shot in your community, etc. These other issues tend to draw reporters away, at least temporarily from what story you might have.

MAINTAIN BALANCE

You may be passionate about your issue. Your issue may be the only thing that lights up your life at this moment, but remember that whether your issue is going on or not, the rest of the world is still going on as it always has. This can make you feel alone and isolated. Talk to friends, families and community organizations that might be of some support to you and your issue. Take respite breaks from your issue to do things that relax and empower you, whether that be that hot bath, that glass of wine at dinner or listening to that new CD you bought.

HAVE FAITH

Rome wasn't built in a day. Your issue will not be resolved in a day either. Any progress in the right direction is positive progress that needs to be acknowledged by you. Keep your issue in the spotlight where possible. Write letters to the editor. Write articles or post online to discussion groups that are related to your issue. Meet informally with others who have an interest in the same issue. Keep in touch with the people that have power over deciding about the issue that concerns you. Send them articles and Internet links that support your position; keep them in the loop.

AS A LAST RESORT, TAKE LEGAL ACTION

You may or may not need to do this, or legal action may not necessarily be what your issue needs, but in some cases, it will push the issue to the top of your opponent's agenda. Being sued has a way of making people pay attention all of a sudden. However, before taking legal action, seeking an hour of a legal expert's time is a good investment. This person can tell you what laws apply to your situation, what legal options you have and how you can best push for your position. They can also tell you if you should take this course of action as well.

There are resources on the Internet that can help you represent yourself if you are articulate and knowledgeable enough about your issue. There are legal experts that might be willing to coach you while you represent yourself on a matter if you cannot afford to hire them to do it for you. In some circumstances, in Ontario a licensed paralegal or agent can represent you on certain matters. In others, you might need to consult a lawyer.

However, if you choose to represent yourself, make sure your documentation is done correctly and you follow the rules of whatever court or tribunal you are taking the matter to. Make sure you come prepared, have all of your facts together along with any evidence. Prepare in advance for what your opponent will say and make sure your documentation addresses this. Be clear as to what remedy you are seeking and justify why that remedy is appropriate.

Even if you are taking legal action against your opponent, treat them and any legal representatives they might have respectfully at all times. This can pay off in big dividends, particularly if your opponent admits part of your case or may be considering some type of settlement proposal. However, when you file for legal action, be prepared to take your case all the way to Trial, even though many cases, you will be able to settle the case before that. It still surprises me to this day how an amicable settlement can still be worked out in many cases, even when it seemed that the involved parties are so far apart on the issues.

SHARE YOUR SUCCESSES

When you accomplish something, write about it. Talk about it. Join or start a group where other people might also be seeking similar solutions that you were able to achieve. If you advocate for somebody else, train that person to take their own stand so that when you are finished your task, there will be at least one more person speaking up about the injustices and doing something about them.

To me, it is only when more and more people take a stand and forward action on human rights issues, that the rest of society will even begin to see their importance and stop any discriminatory practices they might have, or even intervene when they see it happening to somebody else. To me, this is the kind of society that truly respects one another.

2 comments:

Ron Payne said...

This is one of the top 3 articles that I have read on the net as of this date.
Please finish the book and let me know when so I might be the first to buy it?
I agree 100% with what you wrote.
Excellent job!
Ron Payne
Welfare Legal
Hamilton, Ontario
Email welfarelegal2004(at)hotmail(dot)com welfarelegal2004@hotmail.com
Blog http://welfarelegal.blogspot.com/

The Advocate said...

Thanks Ron, just crawling through the spider web of my practice trying to find peak time when I can write, which is kinda hard right now, but I got you covered.